Social media and how it relates to the workplace is one of those areas that every employer is unsure of. This is because social media is a relatively new phenomenon and uncertainty can arise where an employee engages in questionable social media behaviour which the employer believes renders them unsuitable for their job. As such, employers should always keep abreast of employment tribunal cases on this area and today we look at the recent case of Brown -v- Mountview/Blakestown/Hartstown/Huntstown Community Drugs Team Limited T/A Adapt (UD1447/2014).

Employee Dismissed over Facebook Photo

The employee in question worked for an organization who provided services and rehabilitation to persons experiencing drug and/or alcohol problems. The organization also provided services to persons who were the victims of gun crime and indeed persons who perpetrated a gun crime. As a part of his role as a project worker, the employee provided one to one counseling and support to services users.

Facebook Photo

The employer became aware that the employee “had posted a photograph on his Facebook page. The photograph depicted the claimant holding a gun to a ‘victim’s’ head in what appears to be rough surroundings… It was accepted that the photograph was a staged photograph taken while the claimant was on holidays in Thailand in 2008.” importantly, the employee’s Facebook profile was not private, meaning that any Facebook user, including any person who used the employer’s support services, would be able to see the photo if so desired.

As an observation, clearly this photo is at odds with the company’s services and the employee’s own role. It is not beyond the realms of possibly that the employee would be supporting a victim of gun crime in circumstances where that victim views the Facebook photo in question.

Disciplinary Process

From the EAT’s decision it seems as though the employer carried out a very sound disciplinary process and, indeed, the EAT did not identify any concerns with how the matter was conducted. An investigation hearing was conducted, with the employee offered the right to representation, at which point the employee acknowledged that he had posted the photo but that he had viewed it as being a joke. The investigating officer felt that the employee had not shown sound professional judgement and was concerned that the employee had viewed this as a jokey matter. As a result, the matter was forwarded to a full disciplinary hearing.

The EAT decision details that the employer decided to dismiss the employee because “the combined effect of the [employee] posing for, staging and publishing the photograph and then considering it as a joke destroyed her confidence in him. She believed that if the photograph had been viewed by service users or their families it would have damaged the reputation of their service… displaying the photograph in the public domain of Facebook with the claimant in a violent and threatening pose, undermines the professional integrity of the [company], is unacceptable, and cannot be tolerated in any circumstances.”

EAT Decision

Ultimately the EAT found the dismissal unfair but explicitly noted that the employer had “acted in good faith and with the best of motives, in dealing with this matter.” In reaching this decision, the EAT stated that the finding of dismissal was disproportionate when one factored in the following additional elements:

• The employer became aware of the photo in February 2014, at a time when the employee was sick, but did not deal with the matter until April 2014, namely when the employee returned to work. Notwithstanding the fact that the employee was out on sick leave, the EAT felt that if the photo was so potentially damaging to the company then surely they would have taken steps in February to have it removed.
• The employer never received any complaint from service users or otherwise about the photo.
• There was no evidence that any service users had been adversely affected by the photo in terms of their treatment progression.
• The employee had a very good disciplinary record with 11 years’ service.
• Indeed, the employee was a dedicated worker who regularly gave up his personal time to help services users.

As such, the EAT felt that the employee should have received a lesser sanction and therefore found that he had been unfairly dismissed. However, the EAT also found that the employee was “reckless and careless as to the possible dangers of Facebook” and that he had “exposed the [company], its servants or agents, patients, victims, support services in general, to a serious danger and risk of which he was aware or ought to have been aware.” As such, whilst he was unfairly dismissed, the EAT found that the employee’s own actions contributed substantially to the dismissal. In addition, the EAT noted that the employee was not in a position to work anyway as he was claiming disability benefit (and therefore had suffered no real financial loss as a result of the dismissal). Therefore awarded just 4 weeks’ pay, or €3,230.

Learning Points

There are some key learning points that we can take away from this case:

• Always consider an employee’s length of service and disciplinary record in any disciplinary process. This won’t normally of itself render a dismissal unfair but it is one issue that tribunals will take into account.
• Act quickly. In this case the failure to ask for the photo to be taken down when it came to the company’s attention was viewed negatively by the EAT, notwithstanding the fact that the employee was out on sick leave.
• Probably the most important learning point is that if an employee has committed an act that you think might constitute gross misconduct then try and identify if the company has suffered any actual detriment as a result. If not, then it is very unlikely that you will be able to justify dismissing the employee.

If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.

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